Rosenbloom v. United States

• Decision Date: 15 October 1958
• Docket Number: No. 15842.,15842.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Solomon P. ROSENBLOOM, Also Known as Sol Rosenbloom, Appellant, v. UNITED STATES of America, Appellee.

259 F.2d 500 (1958)

Solomon P. ROSENBLOOM, Also Known as Sol Rosenbloom, Appellant, v. UNITED STATES of America, Appellee.

No. 15842.

United States Court of Appeals Eighth Circuit.

October 15, 1958.

Israel Treiman, St. Louis, Mo. (Shifrin, Treiman, Agatstein & Schermer, St. Louis, Mo., on the brief with him), for appellant.

W. Francis Murrell, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., Wayne H. Bigler, Jr., and John A. Newton, Asst. U. S. Attys., St. Louis, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

GARDNER, Chief Judge.

Appellant was indicted, tried and convicted on an indictment charging him with violation of the Internal Revenue Act. The indictment under which he was convicted contained six counts. In Counts I and II the indictment charged appellant with filing fraudulent joint income tax returns for himself and his wife for the calendar years 1950 and 1951. Counts III and IV charged appellant with filing false partnership returns for the Rosenbloom Monument Company for the same two years and Counts V and VI charged him with filing false joint returns for his brother and wife for the same two years. We shall hereinafter refer to appellant as defendant.

Defendant, his brother, his two sons and his brother's son constituted a family partnership and at the times here involved were engaged in the sale of headstones and markers for burial plots and were operating under the trade name of Rosenbloom Monument Company. Defendant and his brother had been operating the business for some thirty-five years and in the years in question were assisted by defendant's two sons and his brother's one son. The five were treated as equal partners on the partnership income tax returns. Defendant ran the office, supervised the bookkeeping and made out the partnership and personal income tax returns for the years 1950 and 1951. He had taken a nine months business college course which included elementary bookkeeping. The chief source of income of the members of this family partnership and their wives was from the Rosenbloom Monument Company.

The books of the company, kept under the supervision and direction of defendant, indicated that for the years involved the partnership realized no net income. However, the income tax returns for those years as prepared by the defendant showed a taxable net income of $25,534.83 in 1950 and $26,750.21 in 1951. The evidence of the government showed that the taxable income for these years was $49,294.88 in 1950 and $53,082 in 1951. There is no material conflict in the evidence as to these primary facts. The discrepancy between the amounts shown as taxable income and the actual taxable income is largely accounted for by the fact that defendant siphoned off the income of the company by paying the sum of $51,665.00 in 1950 to the five partners and charging it to "selling expense", and in 1951 paying the sum of $53,000 to the partners and likewise charging it to "selling expense". Defendant admitted that in preparing the partnership tax returns he padded and enlarged legitimate items of company expense to the extent of almost $25,000 in each of the two years involved. The evidence will be further developed during the course of this opinion.

At the close of the government's evidence in chief defendant moved for judgment of acquittal, which motion was denied. He then introduced evidence on his own behalf, following which the Court submitted the case to the jury on instructions to which defendant made no objections and saved no exceptions. The jury found the defendant guilty on all counts of the indictment and the Court, pursuant to the verdict of guilty, sentenced defendant to imprisonment for eighteen months on each count contained in the indictment, sentences to run concurrently, and imposed a fine of $2,500. He seeks reversal on substantially the following grounds: (1) the government's own testimony refuted the charge that the partnership returns were false and fraudulent, (2) there was not sufficient evidence of specific intent involving bad purpose and evil motive to sustain the verdict of the jury as to any of the counts and therefore the District Court erred in not sustaining the motion for new trial and for judgment of acquittal notwithstanding the verdict, and (3) the District Court committed prejudicial error in its instruction to the jury on presumption of specific intent.

It is contended by defendant that the evidence was insufficient to sustain the verdict of guilty, particularly as to the charges contained in Counts III and IV, and hence he urges that the Court erred in overruling his motion for acquittal interposed at the close of the government's case and in overruling his motion for judgment of acquittal notwithstanding the verdict. It is observed, however, that no motion for acquittal was interposed by defendant at the close of all the evidence. It is also to be noted that he introduced evidence in his own defense. The question of the sufficiency of the evidence to sustain the verdict is not before us because that question was not made a question of law by presenting to the trial court a motion for acquittal at the close of all the evidence. Picciurro v. United States, 8 Cir., 250 F.2d 585, 589. In Picciurro v. United States, supra, we said:

"In order to entitle defendant to question the sufficiency of the evidence he must first have presented the question to the trial court by motion for judgment of acquittal interposed at the close of all the testimony, thus raising a question of law which this court will consider on appeal, and it is well settled that absent such motion this court will not review the evidence."

See, also, Seventh Amendment, U. S. Constitution; McDonough v. United States, 8 Cir., 248 F.2d 725; Kreinbring v. United States, 8 Cir., 216 F.2d 671; Mitchell v. United States, 8 Cir., 208 F. 2d 854; Leeby v. United States, 8 Cir., 192 F.2d 331; Meier & Pohlmann Furniture Co. v. Troeger, 8 Cir., 195 F.2d 193.

It is next contended that there was not sufficient evidence of specific intent to sustain the verdict. As above noted the question of the sufficiency of the evidence has not been preserved and is not before us.

It is urged that the Court erred in its instruction to the jury on the question of specific intent. It is conceded that defendant interposed no objection to the instruction now complained of before the jury retired, as required by Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A. This precludes consideration of this contention on appeal. Kreinbring v. United States, supra; Nicholson v. United States, 8 Cir., 221 F.2d 281; Gicinto v. United States, 8 Cir., 212 F.2d 8; Davis v. United States, 8 Cir., 229 F.2d 181; Schuermann v. United States, 8 Cir., 174 F.2d 397. Rule 30, Federal Rules of Criminal Procedure, provides that:

"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

The rule if complied with gives the trial court an opportunity to correct by modification or otherwise the instruction objected to and thus cure the error, if any. In Kreinbring v. United States, supra 216 F.2d 673, where this question was in issue, we said:

"In the absence of a request for or exceptions to instructions there is nothing to review."

In Nicholson v. United States, supra 221 F.2d 283, it is said:

"There was no exception to this part of the charge, which precludes consideration of the complaint on appeal."

If this were not the rule counsel for defendant, by...